Levine v. Schmidt

• Decision Date: 21 August 2013
• Docket Number: No. SD 32064.,SD 32064.
• Citation: 421 S.W.3d 465
• Parties: In re the Marriage of Charles M. LEVINE, Petitioner–Respondent, v. Karen T. SCHMIDT, Respondent–Appellant.
• Court: Missouri Court of Appeals

421 S.W.3d 465

In re the Marriage of Charles M. LEVINE, Petitioner–Respondent,

v.Karen T. SCHMIDT, Respondent–Appellant.

No. SD 32064.

Missouri Court of Appeals,

Southern District,

Division Two.

Aug. 21, 2013.

Christopher John Swatosh, Ava, MO, for appellant.

James Michael Riehn, Cassville, MO, for respondent.

DON E. BURRELL, J.

Karen T. Schmidt (“Wife”) appeals the judgment that dissolved her marriage to Charles M. Levine (“Husband”). On the day the case was to be tried, the parties engaged in a six-hour negotiation that resulted in a separation agreement. In presenting their agreement to the trial court for its approval, the parties submitted a “Joint Form DR–1” (“DR–1”) that detailed the proposed distribution of their assets and liabilities. Husband and Wife each testified that the DR–1 accurately represented the terms of the settlement agreement. The trial court approved the agreement and incorporated it into its dissolution judgment.

In three points relied on, Wife asserts the trial court “erred in approving [the DR–1] as being not unconscionable” and abused its discretion in denying Wife's post-trial motion to set aside the dissolution judgment pursuant to Rule 75.01.¹ Finding no such error, we affirm.

Applicable Principles of Review

Our review of a dissolution judgment is governed by the standard set forth in Rule 84.13(d). See Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) (interpreting the rule previously numbered as 73.01). We must affirm the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. In conducting our review, we view the evidence and all reasonable inferences that may be drawn from it in the light most favorable to the judgment. Freeland v. Freeland, 256 S.W.3d 190, 193 (Mo.App.E.D.2008).

Factual and Procedural Background

Husband and Wife married in Hawaii on July 20, 1999. No children were born of the marriage. In 2006, Husband and Wife moved to Missouri from California. The parties separated in November 2007, and Wife moved back to California. Wife occasionally traveled to Missouri, and although the parties made attempts at reconciliation, Husband filed his petition for dissolution in June 2011.

The separation agreement awarded Husband the marital home, which was located in Shell Knob.² Husband would assume a $4,700 note owed on Wife's vehicle, and the judgment would order him to pay Wife $85,000 within 30 days of the entry of the judgment “as equalization of the division of assets and liabilities.” Neither party had filed a pleading that requested maintenance, and the separation agreement did not include a provision awarding maintenance to either party.

Both parties were present in person and were represented by counsel during the settlement negotiations and dissolution hearing. Husband testified that the DR–1 accurately set forth the agreement the parties had reached, he believed the agreement was fair and equitable, and he asked the trial court to approve it. Wife also testified that the DR–1 accurately represented their agreement and that she understood its terms. The DR–1 was received into evidence without objection.

At the conclusion of Wife's testimony, the following colloquy occurred:

[Husband's Counsel]: You know what, Your Honor, I don't have any further questions.

The Court: Okay. [Wife's Counsel]?

[Wife's Counsel]: Yes.

The Court: Do you have any questions of your client?

[Wife's Counsel]: I really—I really don't, unless—no, I don't.

[Wife]: You don't? I do.

The Court: Okay.

[Wife]: No, I have some questions.

The Court: Well, you'll have to ask them of your counsel, okay?

[Wife]: Oh, okay. Okay.

[Wife's Counsel]: All right.

[Wife]: Just regarding the fairness of who has been living in my home. Everybody has got rent to pay and so—

[Wife's Counsel]: Oh, Karen.

[Wife]:—I think that at least a period of spousal support is fair.

[Wife's Counsel]: Okay.

The Court: Well, we're not—we're not going to award any spousal support today, okay? So that's going to be the order of the Court. That will be the judgment of this Court at this time. So if you'll just have a seat and we'll go from there.

[Wife]: Today or ever?

The Court: Today or never.

[Wife]: Yeah. I'd like that clear for you. Okay.

The Court: Thank you.

[Wife's Counsel]: And that's your decision, right, Judge?

The Court: That's my decision. Both parties are on disability.

[Wife]: I'm not on disability.

The Court: Oh. So, [Husband] is on disability. We're not going to award any—any maintenance or alimony.

[Wife's Counsel]: That's—that's what I thought.

At the conclusion of the evidence, the trial court accepted the terms of the agreement and directed Husband's attorney to “prepare a judgment to reflect same[.]” Husband's attorney prepared the proposed judgment and sent it to Wife's counsel for her review. On April 13th, Wife wrote a letter to the trial court that claimed the proposed judgment did “not represent accurately the circumstances and details contained in the agreement that [Wife's counsel] told me.” The letter asserted that Wife was under “extreme duress” during the parties' March 15th negotiations and subsequent court hearing, and she had “trust[ed]” her attorney to represent her interests. Wife closed her letter by stating, “I am in the process of seeking new council [sic] and [Wife's counsel] is not authorized to make decisions on my behalf.”

The trial court entered its Judgment and Decree of Dissolution of Marriage on April 17, 2012.

Less than thirty days later, on May 2, 2012, Wife's new attorney filed a “Motion to Reopen Evidence, to Vacate, to Set Aside, to Correct, Amend or Modify Judgment, or for New Trial.” The motion asserted that Wife's previous attorney had not properly represented Wife's interests, that Wife was in a confused, incompetent state during the March 15th hearing, and that Wife did not understand the separation agreement as it was presented to the trial court.

After holding an evidentiary hearing on the allegations on May 10, 2012, the trial court took the motion under advisement. On June 1st, the trial court entered a written judgment denying Wife's motion. In it, the trial court found that Wife had “presented no evidence of any financial inequities in the settlement agreement.” It also noted that Wife “would not waive attorney/client privilege to support allegations in [the] motion.” This appeal timely followed.

Analysis

Husband's Motion to Dismiss

We must first address Husband's motion to dismiss Wife's appeal on the ground that Wife has acquiesced in the judgment and is thereby precluded from challenging it. Husband points to the fact that Wife picked up over $16,000 worth of personal property from their home after the judgment was entered. Additionally, Husband paid off a $4,700 note on Wife's vehicle and transferred title of that vehicle to Wife.

“It is elementary that in a case [where] a party to an action accepts the benefits of a judgment in his favor or acquiesces in a judgment against him he thereby waives his right to have said judgment reviewed on appeal.” Schulte v. Schulte, 949 S.W.2d 225, 227 (Mo.App.E.D.1997) (quoting Steen v. Colombo, 799 S.W.2d 169, 176 (Mo.App.S.D.1990)).

However, this rule has its exceptions. Whether or not the acceptance of partial payment of a judgment constitutes an exception is to be decided on a case by case basis considering all relevant circumstances. Included in the factors which have been considered in finding such an acceptance to be an exception to the general rule are the following: The amount received was a small portion of the total judgment; the amount accepted has effectively been conceded to be due by a [spouse] who did not appeal; the acceptance of benefits was due to financial distress; the absence of prejudice to the judgment debtor [spouse]; and where the only issue on appeal is whether an award will be increased. It has been observed [that] the general rule pertaining to acquiescence in judgments should not be strictly applied in divorce cases because of the peculiar situations of the parties and the equitable considerations involved.

Smith v. Smith, 702 S.W.2d 505, 506–07 (Mo.App.S.D.1985) (citations and quotations omitted); see also In Re Marriage of McKee, 940 S.W.2d 946, 947–48 (Mo.App.S.D.1997).

Here, Wife collected personal property from the home, but there is no assertion by Husband that Wife would not have been otherwise entitled to the possession of that property. And although Husband did pay off the note encumbering Wife's vehicle, this amount was small in relation to the entire monetary amount awarded to Wife in the judgment. Most importantly, although Husband's affidavit in support of his motion states that “on or about June 11, 2012, [Wife] contacted me and wanted to ... get the check for $85,000 made out to her only and ... wanted a clear title [for the vehicle],” and that Husband “finalized the loan” that would enable him to comply with those desires, Husband does not affie that he actually paid Wife the $85,000 equalization payment (emphasis added). Husband's motion to dismiss Wife's appeal is denied.

Point I

Wife's first point asserts the trial court erred in approving the separation agreement as not unconscionable because “the terms of the separation agreement were not spread upon the record, the separation agreement did not provide for the maintenance of Wife, and Wife was not in agreement with the separation agreement at the time it was presented to the trial court.” Wife's point is multifarious in that it contains multiple, disparate claims and is thereby in violation of Rule 84.04(d). Jeffus v. Jeffus, 375 S.W.3d 862, 863 n. 1 (Mo.App.W.D.2012). Nevertheless, Wife's point is not so deficient that it impedes our review, and we will address it ex gratia. Id. Missouri's public policy is to encourage the use of separation agreements.

To promote the amicable settlement of disputes between the...